Edmund A. Johnson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01983873 (E.E.O.C. Mar. 23, 2000)

01983873

03-23-2000

Edmund A. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.


Edmund A. Johnson v. United States Postal Service

01983873

March 23, 2000

Edmund A. Johnson, )

Complainant, )

) Appeal No. 01983873

v. ) Agency No. 4-I-570-1029-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Mid West Region), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of age (DOB: 10/6/33) and in reprisal for prior EEO activity in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> Complainant

alleges he was discriminated against when he received a Fiscal Year

1995 (FY95) rating of "unacceptable," which excluded him from the FY95

Variable Pay Package. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the Commission affirms

the FAD as clarified.

The record reveals that during the relevant time, complainant was employed

as a Postmaster at the agency's Main Post Office in West Fargo, North

Dakota. Based on an investigative memorandum dated February 17, 1995,

from the agency's Inspection Service, the Manager of Postal Operations

(MPO) concluded that complainant knowingly violated normal procurement

policies by splitting requisitions which cumulatively exceeded $10,000.00.

The MPO issued complainant a Letter of Warning (LOW) on March 28, 1995,

although the District Manager (DM) believed a Notice of Removal or a

"time off suspension" would have been more appropriate. After monitoring

complainant's procurement activities for a period of time and arranging

for supplemental training, the MPO agreed to have the LOW removed from

complainant's official personnel file. However, the MPO rated complainant

"unacceptable" for FY95 since complainant, had, in fact, violated the

agency's procurement policies.

Believing the agency discriminated against him, complainant sought EEO

counseling and subsequently filed a formal complaint on April 12, 1996.

At the conclusion of the investigation, when complainant failed to timely

request a hearing before an EEOC Administrative Judge, the agency issued a

final decision from which complainant now appeals. On appeal, complainant

contends that the agency failed to consider a number of his arguments.

Specifically, complainant asserts that all work orders were in compliance

with his spending authority. Complainant also asserts that the MPO told

him that there would be no further repercussions besides the LOW and that

he was threatened with removal if he did not drop his EEO complaint and

did not retire. The agency requests that we affirm its FAD.

After a careful review of the record, based on the standards set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Loeb v. Textron,

600 F.2d 1003 (1st Cir. 1979); and Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas

to retaliation cases), the Commission disagrees with the agency's

conclusion that complainant failed to establish a prima facie case of

age discrimination or retaliation. Regarding retaliation, we find

that the MPO, who was named as the responsible agency official in

complainant's prior complaint, entered into a settlement agreement with

complainant approximately two months before he gave complainant a rating

of "unacceptable." Accordingly, we will infer a retaliatory motive.

See Devereux v. United States Postal Service, EEOC Request No. 05960869

(April 24, 1997). Furthermore, although complainant did not name any

similarly situated younger employees who received more favorable ratings,

we note that the Variable Pay Package impacted complainant's prospective

retirement which was an age-based issue raised in the prior complaint.

Accordingly, we will infer a discriminatory motive towards complainant's

age. See Enforcement Guidance on O'Connor v. Consolidated Coin Caterers

Corp., EEOC Notice No. 915.002 (September 18, 1996).

The agency articulated a legitimate, nondiscriminatory reason for

giving complainant a merit evaluation of "unacceptable," namely that

complainant was disciplined during the rating period for violating

postal procurement policies and procedures. Despite his contention to

the contrary, complainant did violate the procurement policy when he

requested a contractor to break down a total payment for one project

into separate increments which did not exceed the amount he was allowed

to spend without prior approval from the District. Complainant failed

to present evidence that the discipline was not the real reason for his

"unacceptable" merit evaluation or that "but for" his age, he would have

been rated differently. See Fodale v. Department of Health and Human

Services, EEOC Request No. 05960344 (October 16, 1998). The record

indicates that all Postmasters who had been disciplined during the

rating period were excluded from the FY95 Variable Pay Plan, and we

find no support in the record for complainant's contention that he was

threatened with removal if he did not drop his EEO complaint and did

not retire. Accordingly, we find that complainant failed to establish,

by a preponderance of the evidence, that the agency's explanation for

its action was a pretext for unlawful discrimination or retaliation.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD as

clarified.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS THE

DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your case

in court. "Agency" or "department" means the national organization, and

not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

3/23/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

________________________

Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.